Peter Bobek v Jba Consulting Engineers Pty Ltd T/A Jba Consulting Engineers

[2021] FWC 658

[2021] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Bobek
v
JBA Consulting Engineers Pty Ltd T/A JBA Consulting Engineers
(U2020/4310)

COMMISSIONER BISSETT MELBOURNE, 11 FEBRUARY 2021

Application for an order for costs.

[1] Mr Peter Bobek made an application to the Commission under s.394 of the Fair Work Act 2009 in which he claimed he had been unfairly dismissed from his employment with JBA Consulting Engineers Pty Ltd (JBA) on 25 March 2020.

[2] On 30 September 2020 I issued a decision 1 (the Decision) in which I found that Mr Bobek had not been dismissed but had voluntarily resigned. I therefore dismissed his application and issued an Order2 to that effect.

[3] On 14 October 2020 JBA made an application for costs against Mr Bobek under s.400A and s.611 of the FW Act. In particular, JBA was represented in the proceedings in relation to the application by the Victorian Chamber of Commerce and Industry (VECCI) (for which permissions was not required). JBA sought total costs of $36,691.50 it says it incurred in proceedings.

[4] On 26 October 2020 I issued directions for the filing of submissions and evidence in relation to the costs application. The application was listed for hearing on 7 December 2020. At that hearing it become abundantly clear that Mr Bobek, who was unrepresented (as was JBA at the costs hearing), was unaware of the matter he was required to respond to. I therefore adjourned proceedings and issued further amended directions. These directions gave both JBA and Mr Bobek an opportunity to file further material responsive to the matter to be determined. Following the filing of the further material – which was directed to the matter at hand – the parties agreed that I could determine the matter on the basis of the written material filed by the parties.

THE DECISION

[5] In my Decision I found that Mr Bobek had voluntarily retired from employment, 3 that the evidence did not support a conclusion that he was entitled to redundancy pay4 and that he was not forced to resign by conduct or a course of conduct of the employer.5

[6] In reaching my Decision I generally preferred the evidence of others to that of Mr Bobek. I considered that he only thought his dismissal unfair when he discovered, following his retirement, that he would not receive redundancy pay. I did not find Mr Bobek’s medical certificate issued more than 5 weeks after his retirement as providing any evidence to support that he was not in the right frame of mind when he retired from his employment.

LEGISLATION

[7] The application for costs has been made pursuant to s.440A and s.611 of the FW Act.

400A Costs orders against parties

(1)  The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.

611 Costs

(1)  A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

THE APPLICATION FOR COSTS

[8] JBA submits that, in making his application for unfair dismissal, Mr Bobek sought as remedy payment of 1 weeks’ pay for each year of service. Further, Mr Bobek claimed that he had received no pay increase in over 21 years of employment.

[9] JBA says that at the conciliation of the application in May 2020 Mr Bobek was advised that, if he was entitled to redundancy, the most he could receive would be 12 weeks’ pay. Mr Bobek then agreed to a settlement sum of $14,614.15 with JBA which he later rejected.

[10] At a further conciliation before a member on 29 May 2020 JBA says the Mr Bobek agreed to settle for a payment of $9,000 (post taxation). This was put in writing to him, but he did not reply to the offer.

[11] JBA submits that at a further conciliation on 7 July 2020 the Commission member enquired if the matter had been resolved to which Mr Bobek advised he had “changed his mind”. In further discussions JBA indicated it was prepared to negotiate to resolve the matter but Mr Bobek refused.

[12] Submissions and evidence were filed by JBA on 28 July and 18 August 2020, including 9 witness statements and submissions.

[13] On 26 August 2020 a further conciliation was conducted by a Commission member with the agreement of the parties. JBA says that at that conciliation it made an offer of $11,000 to settle the matter. This was refused by Mr Bobek who sought 12 weeks’ pay and 5 weeks’ notice on the basis that that he was “entitled” to that amount.

[14] At the subsequent hearing Mr Bobek accepted without cross-examination the witness evidence of Mr Geoffrey Engelfield. Mr Tim Bush, Mr Keith King and Mr Samir Bhatt. JBA says that, while Mr Kash Bryar, Mr Quil Bryar and Mr Mauro Romano were subject to cross examination this was on matters mostly unrelated to the claim for unfair dismissal.

[15] The application for costs is opposed by Mr Bobek. He submits that matters arising under the FW Act are intended to operate on a “no costs” basis, that each party should bear its own costs and it would only be a rare event that the Commission would make an order for costs.

[16] Mr Bobek submits that JBA chose to be represented in the proceedings before the Commission, Mr Bobek was not represented, there was no need for representation and, in accordance with the principles in the FW Act, having chosen to be represented, JBA should meet its own costs.

THE APPLICATION WAS MADE VEXATIOUSLY (s.611(2)(a))

[17] JBA submits that Mr Bobek set out “from the start” to “demonise JBA in the hope that the character attacking narrative of his application [was] enough to make it succeed.” It further submits that Mr Bobek knew the application would “embarrass, harass and annoy JBA” as JBA would be required to spend time and effort in defending the claim.

[18] JBA further submits that Mr Bobek:

•  Set out to attack the integrity, relationships and standing of JBA

•  Attacked the credibility of Mr Kash Bryar, Mr Quil Bryar and Mr Romano in cross examination and sought to embarrass and attack the character of the three

•  In failing to cross examine other witnesses demonstrated his claim was in pursuit of money and to harass and annoy JBA

•  Did not follow the dispute settling procedure in the relevant award in pursuing a redundancy payment

•  Sought to waste the time of the Commission and JBA

•  Pursued his own self-interest and not the law

[19] Mr Bobek submits that:

•  He believed that he could recover what he considered due to him by making an unfair dismissal application

•  It is not unusual for applicants to seek payment of entitlements such as notice and to have such matters settled in conciliation. Seeking payment of an unpaid entitlement in an application does not mean the application is made for a “collateral purpose”

•  His comments that the actions of JBA were unfair and that he had been mistreated were not intended to embarrass, harass of annoy JBA

•  His comment in cross examination that he did not need the money is evidence that his intention was not to extort money

Consideration

[20] It is readily apparent from the wording of s.611(2)(a) that the point in time at which Mr Bobek’s actions must be considered is at the time he made his application for unfair dismissal. I would also observe that this is a separate consideration from whether the application was made without reasonable cause.

[21] Mr Bobek’s behaviour when conducting the unfair dismissal proceedings is not a relevant consideration in considering if the application was made vexatiously. How Mr Bobek conducted the cross examination of witnesses or whether he wasted the time of the Commission in conciliation and hearing – whilst they may have led to costs for JBA which then might be payable and while it may have been frustrating – are not the relevant matters to consider.

[22] In Holland and anor v Nude Pty Ltd T/A Nude Delcafe 6 (Nude Delcafe) the Full Bench of Fair Work Australia said:

[7] …The approach generally taken by members of the Tribunal as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust 7 (Nilsen). The Commissioner referenced this case in her reasons for decision. Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by His Honour was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. About this provision His Honour said:

“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491. The approach of the High Court in an application for a permanent stay of criminal proceedings on the ground of abuse of process constituted by improper purpose is instructive. In Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509,at 522, Mason CJ, Dawson, Toohey and McHugh JJ said:

“Bridge LJ identified one difficulty when he said ([1977] 1 WLR, at p 503; [1977] 2 All ER, at p 586):

‘What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.’ (Emphasis added.)

So would we. But his Lordship, by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral and improper purpose.”

[23] The critical enquiry therefore goes to the motive of Mr Bobek in making his application.

[24] In Nude Delcafe the Full Bench also considered the type of relief sought by the applicants in that case. The Full Bench said:

[11] The second limb of the appellants’ submission is that the Commissioner was in error in finding the applications were made vexatiously as the purpose for making them was a collateral one to obtain a payment from the respondent to cover the period between the date of the appellants' dismissals and the date upon which they intended to resign from employment. We are persuaded there is merit in this submission. Although we note that the extract from Nilsen is the source of the reference to a collateral purpose we doubt it was intended to extend to a desire by an applicant to obtain relief in the nature of that which the Act contemplates. In this respect we note that s.390 refers to both reinstatement or the payment of compensation as being remedies available if a finding that a dismissal was unfair is made. In our opinion, seeking to obtain an amount of compensation for wages lost is not a collateral purpose. And, in our opinion, this is so whether or not the appellants intended to progress their applications to completion (ie to an arbitrated outcome).

[25] In the case before me Mr Bobek, in making his application for unfair dismissal, sought the payment of 21 weeks’ pay. The payment of a “redundancy” amount was a position he maintained through conciliation and at hearing. In his application for unfair dismissal, in response to the question as to why the dismissal was unfair, Mr Bobek said:

I received an email on Thursday the 2nd of April, 2020, stipulating the final pay breakdown and an attached letter of termination (which Quilon Bryar worded as my Letter of Retirement), I noticed that the 5 weeks advanced leave payment was included, but that no redundancy payment was included. The attached letter was suggesting that this termination was a planned retirement and that myself and the company had knowledge that this would occur. This is not correct, as I did not and do not want to retire. There is a distinct discrepancy between what occurred in regard to my termination, and what the letter is suggested having occurred. Therefore, this is an unfair dismissal, and I should be entitled to a redundancy payment.

[26] In his written submissions in relation to his application Mr Bobek re-framed this:

During this phone call [with Quilon Bryar], I also asked about my minimum legal requirements to ascertain whether JBA would pay my 5-week notice period and 12-week redundancy payment…

After some time to dwell on the…phone call and a lack of clarity provided by JBA, I felt I would not be receiving my minimum legal entitlements and decided to lodge a unfair dismissal.”

[27] I am satisfied, on the basis of his application, that the motivation of Mr Bobek in making his unfair dismissal application had nothing to do with the grounds on which his employment was terminated but rather was driven by a view that he was entitled to redundancy pay.

[28] Mr Bobek confirmed in the hearing of his application that if he had received a redundancy payment he would not have made an unfair dismissal application. The application therefore was not to challenge the fairness or otherwise of the dismissal but rather the fairness or otherwise in not receiving redundancy pay.

[29] To the extent that Mr Bobek submitted that he made his application based on information he says he obtained from the “Fair Work Commission” I do not accept that this is the case and this submission carries no weight in my finding. There was no evidence put in the unfair dismissal proceedings or in this matter that Mr Bobek had, at the time of making his application, received any advice from the Commission that he was “entitled” to redundancy pay. The evidence in relation to this produced by Mr Bobek in the unfair dismissal proceeding was an email between his son and an employee of the Fair Work Ombudsman (FWO) in which the son sought assistance “in the calculation of my fathers (sic) redundancy payment amount.” 8 This correspondence, in any event, was dated July 2020 – well after the unfair dismissal application was made by Mr Bobek. There was no evidence that Mr Bobek was ever advised by the Commission or FWO that he was “entitled” to redundancy pay prior to or after his application being made.

[30] The remedy sought by Mr Bobek in his unfair dismissal application (redundancy pay) is not a remedy that could be granted by the Commission. As I said in my Decision, even if the Applicant was entitled to redundancy pay, the non-payment of the entitlement does not make the dismissal unfair in the sense contemplated by the FW Act. 9 This is the distinction drawn by the Full Bench in Nude Delcafe set out above. That an applicant may have an ulterior purpose but still have grounds for the application does not mean that the proceedings should be found to be vexatious if the remedy sought is relief contemplated by the FW Act. However, in circumstances where the application is made for the purpose of securing an outcome that is not within the Commission’s jurisdiction to grant, it may well be seen that the application was made for an ulterior purpose such that the application for unfair dismissal may be seen as vexatious.

THE APPLICATION WAS MADE WITHOUT REASONABLE CAUSE (s.611(2)(a))

[31] JBA submits that the application was made without reasonable cause because Mr Bobek:

•  Sought a remedy in application of 21 weeks’ pay – a remedy that he should have known had no basis in in policy or law

•  Failed to detail the basis of his claim of a right to 21 weeks’ pay

•  Unreasonably continued his case following receipt of JBA’s Form F3 – Response

•  Accepted but then reneged on his agreement to settle his application in conciliation

[32] Mr Bobek submits that the point in time at which it must be determined if an application is made without reasonable cause is the point in time at which the application is made. The conduct of the parties after this point is not relevant to the assessment of a costs application.

[33] Mr Bobek submits that he did not make his application without reasonable cause:

•  At the time of making the application he was of the reasonable belief that he had been dismissed

•  The factual issue of whether he was dismissed was only resolved by the decision of the Commission

•  Prior to making his application he sought advice from the Fair Work Commission and was advised he was entitled to redundancy pay, notice or payment in lieu and entitled to make an application for unfair dismissal. Based on this discussion it was his “reasonable belief” that he had been dismissed

•  That the unfair dismissal application did not succeed does not mean it was made without reasonable cause

•  The success of his application depended on resolution of one or more arguable points of law – namely whether he had been dismissed

Consideration

[34] An application cannot be seen to be without reasonable cause just because the application fails. 10

[35] In Kanan v Australian Postal and Telecommunications Union 11 Wilcox J observed that:

29. It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. That is the situation in the present case. The qualification of s.347 applies. The Court has power to order costs against the applicant.”

[36] I accept that a determination of whether an application is made without reasonable cause must be made at the time the proceedings were instituted. This much is abundantly clear form the wording of s.611(2)(a). As stated above, the assessment cannot be made on the basis of things discovered or actions taken (or not) at a point after the application is made. The determination of this question rightly rests on the application of Mr Bobek in the Form F2.

[37] With respect to the submissions made on this aspect of the application for costs I accept that there was a question of law to be determined by the Commission in deciding the application for unfair dismissal. That was whether the Applicant had been dismissed or had retired from his employment.

[38] I acknowledge that JBA maintained (and it was ultimately accepted) that Mr Bobek agreed to retire. However, this was the matter in contest between the parties and it was the primary matter to be decided in the unfair dismissal proceedings.

[39] For this reason alone I would find that the application was not made without reasonable cause.

SHOULD HAVE BEEN REASONABLY APPARENT THE APPLICATION HAD NO REASONABLE PROSPECT OF SUCCESS (s.611(2)(b))

[40] JBA submits that, given the finding in the Decision that the Applicant was not dismissed, it should have been reasonably apparent to Mr Bobek that his application for unfair dismissal had no reasonable prospects of success.

[41] Mr Bobek relies on his submissions as to the advice he says he received from the Commission in relation to his redundancy entitlements and that there was a matter of law to be determined in the unfair dismissal hearing in support of his submission that I should not find his application had no reasonable prosects of success.

Consideration

In Baker v Salver Resources Pty Ltd 12 the Full Bench of Fair Work Australia observed:

[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

•  “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; 13 and

•  a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless 14 or so lacking in merit or substance as to be not reasonably arguable.15

[42] I consider, from the scant submissions of JBA, that it only seeks to rely on a finding under s.611(2)(b) of the FW Act based on submissions it has made in respect to other aspects of its costs claim. It has, for example, put no specific submissions as to why I should find the application for unfair dismissal “manifestly groundless”. Without such a submission there is no basis on which I can make a finding in relation to s.611(2)(b) of the FW Act.

[43] I would observe however that an unsuccessful application for unfair dismissal is not enough to ground a finding that it should have been reasonably apparent that an application had no reasonable prospects of success.

WHETHER COSTS WERE INCURRED BECAUSE OF AN UNREASONABLE ACT OR OMISSION OF THE APPLICANT (s.400A)

[44] JBA submits that the following actions of Mr Bobek were unreasonable acts or omissions that caused it to incur costs:

•  His initial acceptance and then refusal to proceed with an agreement reached in conciliation to settle the application

•  An amendment of his settlement proposal

•  Acceptance then rejection of a further settlement proposal in a member assisted conciliation

•  Following receipt of JBA’s submissions on the unfair dismissal claim a further refusal of a reasonable offer to settle

•  A failure to give thoughtful and careful consideration to the offers of JBA to settle the matter

[45] Mr Bobek submits that if an agreement was reached at either of the first 2 conciliations it was open to the Respondent to apply to have the application dismissed on the authority in Masters v Cameron 16or the principles in Phillips v Northern Golf Club17 but it did neither. Had JBA done so it may have avoided costs it incurred from 13 May 2020 or 29 May 2020.

[46] In considering this aspect of the costs application Mr Bobek submits that the Commission should take into account his mental state at the time of the application. His wife was in palliative care and died in late May 2020 following the first conciliation and just prior to the conciliation before a member of the Commission.

Consideration

[47] The inquiry necessary in relation to s.400A covers the period from the making of the application through the conduct of the case. The conduct of Mr Bobek to be considered is in making and pursuing his application through multiple conciliations and to hearing and if, in this process, he engaged in any unreasonable acts of omissions that caused JBA to incur costs.

[48] If I do find that there were unreasonable acts or omissions at a particular point in time and I decide to award costs on that basis, only the costs incurred by JBA from that particular point in time are relevant.

[49] In Construction, Forestry, Mining and Energy Union v Clarke 18 the Full Court of the Federal Court considered an application for costs pursuant to s.824 (1)-(2) of the Workplace Relations Act 1996. Section 824(2) provides that the court may award costs if it was satisfied that a party “by an unreasonable act or omission” had caused another party to incur costs. In considering the provisions of s.824(2) the Full Court said:

28. The first criterion is that one party must have engaged in “an unreasonable act or omission”…[W]hether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have “caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.

29. In our view, the respondent has not engaged in “an unreasonable act or omission”. As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable…Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order.

[50] Whilst that decision was made with respect to provisions of the Workplace Relations Act 1996 it can be applied to s.400A of the FW Act which uses the similar language and is in the same context of a costs application.

[51] In Adamczak v Alsco Pty Ltd (No 4) 19it was said, in relation to an application for costs based on a party’s unreasonable act or omission:

104 Although the issue must be decided retrospectively, it is to be determined by reference to the situation of each of the parties concerned assessed prospectively, when the relevant offer was made, not judged by the ultimate outcome of the case itself. The danger arises from applying the wisdom of hindsight to assess the reasonableness of a refusal of an offer to settle, after all the evidence available, in a general protection application, has been considered and canvassed at final hearing. Clearly, this full panoply of evidence is not accessible by an offeree of a Calderbank letter, when such an offer is first received.

[52] Whilst the decision Adamczak was concerned with a Calderbank offer, the principal in relation to determination of an unreasonable act or omission is apposite to the matter I must determine. There is no apparent reason why the consideration should be any different just because a Calderbankoffer was or was not involved.

[53] In the Explanatory Memorandum to the Fair Work Bill 2012 it was said, of the power to award costs pursuant to s.400A:

170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171.     However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

[54] Mr Bobek made his application for unfair dismissal initially seeking 21 weeks’ pay in compensation. Apparently on advice that the maximum redundancy payment he would be entitled to (if such an entitlement existed) was 12 week’s pay Mr Bobek then sought, in conciliation, 12 weeks’ pay plus 5 weeks’ notice ( that is, a total of 17 weeks’ pay). The amount offered in that first conciliation was approximately 11 weeks’ pay (inclusive of notice). Some other payments were detailed which appeared to be entitlements (wages and leave accrual) due to Mr Bobek.

[55] A review of the Commission’s electronic file (and reflected in the correspondence sent by JBA to Mr Bobek following the conciliation 20) indicates that Mr Bobek was given a 3-day cooling off period following the staff conciliation and he exercised his rights within that 3-day period to withdraw from the proposed settlement. To have not included this fact in its submissions makes the submissions of JBA misleading in respect to the conduct of Mr Bobek. Mr Bobek did not walk away from an agreement made as such but rather utilised the 3-day cooling off period.

[56] Beyond the claim that Mr Bobek walked away from an agreement reached, JBA do not otherwise argue any unreasonable act or omission on Mr Bobek’s part in relation to the first conciliation. Whilst Mr Bobek may have been aware of the response to his application filed by JBA at that time, he was not fully aware of the detail and breadth of the case JBA would mount.

[57] Further, it appears that a second offer (of $9,000) was put to Mr Bobek in writing following the first member assisted conciliation which was to be discussed at the second member assisted conciliation. For a range of personal reasons on both sides the member assisted conciliation could not be reconvened until 7 July 2020. It was at this conciliation that the matter failed to settle as Mr Bobek rejected that offer from JBA. This is perhaps not surprising given it was lower than the first offer already refused. Beyond a claim that Mr Bobek again walked away from an agreed settlement (of which there is no evidence) JBA provide no other submissions as to how, at this point, Mr Bobek engaged in an unreasonable act or omission in relation to this conciliation.

[58] By the time of the final member assisted conciliation of 26 August 2020 Mr Bobek had received JBA’s complete submissions and evidence – none of which suggested he had been told or was led to believe he would receive a redundancy payment on leaving JBA. That material also squarely laid out that JBA contested he was dismissed and maintained, and provided evidence to support, that he had voluntarily resigned. In such circumstances the refusal by Mr Bobek of the offer from JBA of $11,000 to settle the matter is inexplicable.

[59] Mr Bobek sought 21 weeks’ pay or approximately $28,900. He rejected the first offer of just over $14,000 and then an offer of $9,000. I do not consider either of these actions as unreasonable. By the time he rejected the third offer of $11,000 Mr Bobek should have been able to make a reasonable assessment of the evidence and case he would need to counter. Mr Bobek is an intelligent man. He was, in my opinion, capable of making an objective assessment of his own case and that of JBA. His conduct in rejecting the third offer suggests stubbornness and borders on the unreasonable.

[60] Whilst the third offer was less than the first offer already rejected by him I am satisfied, on the basis of statements made by Mr Bobek, that he did not give careful consideration to the offer in the context of submissions and weight of evidence filed by JBA. Mr Bobek knew the Commission could not grant him redundancy pay yet he maintained this was his right through to hearing. It may well be that pride clouded Mr Bobek’s judgement but he had an opportunity to negotiate the closure of his claim which he unreasonably refused. He caused, by this action, costs to be incurred by JBA.

SHOULD COSTS BE AWARDED?

Even if I have found that the conditions necessary for making an order for costs have been made out, whether to make such an order is a discretionary decision of the Commission. In considering how that discretion should be exercised I have been mindful of the objects of Part 3-2 of the FW Act and that generally, parties to matters before the Commission, should bear their own costs. I have also borne in mind that it is more often the respondent to an unfair dismissal who has representation with individual applicants often self-represented and certainly without recourse to the resources often available to employers.

[61] The decision whether to award costs is a difficult one. The Commission is a jurisdiction accessible to aggrieved individuals who can, within bounds, pursue their matter without facing the prospect of a costs bill from the other party. This, it seems to me, goes hand in hand with the presumption that a party will represent itself and must gain permission should it wish to be represented.

Section 611(2) of the FW Act

[62] For the reasons given above I am satisfied that Mr Bobek made his application for unfair dismissal vexatiously. I am not satisfied that it was made without reasonable cause given the question of law to be determined. I am not satisfied that I have material that would allow me to find that it should have been reasonably apparent to Mr Bobek that his application had no reasonable prospect of success.

[63] It is not uncommon that an applicant conflates a number of matters into an unfair dismissal application. The confusion of the right to an entitlement with the harshness or unreasonableness of treatment in ending employment is not uncommon and more prevalent in a self-represented party. While such conduct may fit a strict definition of being vexatious it is not unusual with the actions motivated more from ignorance where an applicant knows no other means by which to seek what they consider they are due. To award costs against an applicant for this reason alone therefore may not be seen to fairly balance the actions of the applicant and the overall principal that a party should bear its own costs.

[64] Mr Bobek was a difficult applicant. He held a strong view (without foundation) that he was entitled to redundancy pay. He maintained this through staff conciliation, member assisted conciliation and the hearing of his application. It is apparent however that he did not seek any formal advice prior to making his application as to his “entitlements” as such or act contrary to any such advice. For these reasons I have decided not to award costs pursuant to s.611(2) of the FW Act.

Section 400A

[65] For the reasons given above I am satisfied that Mr Bobek engaged in an unreasonable act or omission in refusing the final settlement offer of $11,000 at the August conciliation. I am satisfied that the action of Mr Bobek caused JBA to incur costs.

[66] In circumstances where the rejection of that offer was the day before the hearing of the application I have decided that Mr Bobek should not be required to pay any of those costs. In reaching this decision I have taken into account that Mr Bobek did not require 4 of JBA’s 7 witnesses for cross examination and that 2 of JBAs witnesses would, as Directors of JBA, most likely have been in attendance.

[67] That Mr Bobek failed at hearing is not enough to find that his refusal of the offer was an unreasonable act or omission and care must be taken not to view his actions in hindsight.

[68] I therefore decline to make an order for costs. In so doing I observe that it is unfortunate that things have reached the point they have. Mr Bobek had worked for JBA for over 20 years – he was, clearly, a valued employee. It is sad to see such a long standing relationship reduced to this.

[69] The application for costs is dismissed. An order 21 to this effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

JBA Consulting Engineers Pty Ltd (costs applicant) – 11 January 2021

Mr Peter Bobek (costs respondent) – 31 December 2020

Printed by authority of the Commonwealth Government Printer

<PR726804>

 1   [2020] FWC 5093.

 2   PR722993.

 3 Ibid at [63].

 4   Ibid at [69]-[70].

 5 Ibid at [78].

 6   [2012] FWAFB 6508.

 7 [1997] 76 IR 180 at page 181.

 8   Unfair dismissal Applicant’s witness statement, attachment 5.

 9 Decision at [71].

 10   R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J.

 11 (1992) 43 IR 157.

 12   [2011] FWAFB 4014.

 13    Wodonga Rural City Council v Lewis, PR956243, at para 6.

 14   Deane v Paper Australia Pty Ltd, PR932454, at paras 7 and 8.

 15   A Smith v Barwon Region Water Authority, [2009] AIRCFB 769, at para 48.

 16 [1954] HCA 72.

 17   [2020] FWC 4324.

 18 [2008] FCAFC 143.

 19 [2019] FCCA 7.

 20   See unfair dismissal Applicant outline of submissions attachment 2.

 21   PR726879.